This Article is written by Bhargavi Bhardwaj (a 2nd-year law student at Bennett University)
The feeling of parenthood is yearned by most of the couples, who have, despite multiple efforts failed in producing a ‘one of their kind’. The whole notion of ‘lineage’ and ‘own blood’, brings such couples to the option of surrogacy. Section I of the Law Commission’s 228th report, defines surrogacy as “an act done by a substitute”, hence a surrogate mother is the one who carries a child and delivers it on behalf of some other woman. There are mainly four types of surrogacies that are recognized-
- TRADITIONAL SURROGACY – Herein, the surrogate mother conceives using natural procedures like insemination (frozen sperm) or Intracervical Insemination or Intrauterine Insemination. However, after the birth of the baby the surrogate mother, her rights over the baby cease to exist.
- GESTATIONAL SURROGACY- Herein, the surrogate mother acts more like a carrier for the baby and isn’t the ‘biological mother’ as the embryo implanted consists of a donated egg.
- ALTRUISTIC SURROGACY- Herein, the surrogate mother receives no monetary benefit for delivering the child or for gestation. The party in agreement with the surrogate mother just needs to ensure her medical and pregnancy-related requirements and expenditures.
- COMMERCIAL SURROGACY – Herein, the surrogate mother receives her due monetary benefits for carrying the child in the womb and delivering it. (Vimal, 2019)
In, India commercial surrogacy was initially legalized in the year 2002 to promote potential medical tourism and enhance the revenue that could be earned from the same. But now it is highly criticized because such type of surrogacy entails exploitation, oppression, health risks, huge monetary expenditure and, other types of problems that ensue even after the birth of the baby. The surrogacy which is considered ideal in India is “Altruistic surrogacy”. Many bills have been passed in this respect to curb and limit the concept of commercial surrogacy, like The Assisted Reproductive Technologies (ART) Bill 2008, The Assisted Reproductive Technology Bill, 2013, The Surrogacy (regulation) bill, 2018, The Surrogacy (Regulation) Bill, 2020 etc., have not been able to see the daylight as they still have not received the assent from the Rajya Sabha. Hence, the surrogacy business remains largely unrestricted and unregulated. (Mohanty, 2021)
It is an agreement between the couple and the surrogate which dwells upon and outlines liabilities, rights responsibilities, payment scheme, other benefits to the surrogate, custody of the child after birth, right of the parties after the birth of the baby, and other necessary terms which are quintessential for the surrogacy procedure. Due, to no legal regulations and provisions in respect to surrogacy, the nature of this contract/agreement is personal and the parties are unrestricted in deciding the terms of such agreements. Hence, they are essentially governed by the Indian Contract Act, 1872. Section 10, of the Indian Contract Act, elaborates on the aspects of valid contracts. It declares that all such agreements are valid contracts that are formed for lawful objects, with lawful consideration and, between parties who are competent to contract. (KUSUM)
In the landmark judgement of Baby Manji Yamada vs Union Of India & Anr, 2001 a Japanese couple entered into a surrogacy agreement with the defendant (surrogate). However, before the birth of the baby Manji, the Japanese couple had taken divorce. The father flew down from japan to take custody of the baby but wasn’t allowed to do so due to laws in India that deny a single father the right to adopt a girl child. The Japanese man then claimed the legal custody of his daughter born out of surrogacy with the help of his mother who was given the legal guardianship of the baby. The point that is highlighted in this case, is that this was the first instance where the SC had taken into consideration Surrogacy agreements and declared them to be valid and enforceable in the eyes of the law.
In the case of “Dr Normann Witzleb vs Jyotshana Mandal & Anr., 2011”, the plaintiff(citizen of Germany and Australia) entered into a gestational surrogacy contract with the defendant, as the surrogate (and her husband as a ‘confirming party’). It was established in the contract that the plaintiff will be a natural and legal guardian of the baby and no contention or doubt will be expressed by the defendants in this respect and they will have no right over the baby. The defendant, later on, gave birth to a baby boy. As the child was born during the marriage of the defendant, in order to claim rightful legal guardianship the plaintiff requires a declaration from the defendant, affirming that he(plaintiff) is the rightful guardian of the child. The issue raised was whether the agreement of surrogacy is valid? It was held that the surrogacy agreement is valid and there are no laws that bar such agreements. Moreover, the plaintiff was held to be the legal and biological father of the child and the defendants were forbidden to act in any way that is contrary to the terms of the agreement.
A similar decision was upheld in the cases of Jai Kishan V. Persaud & Anr. vs . Tara Kumari & Anr., 2013; Dr John Lancelot Leonardo vs . Sunita & Another, 2012 and Mr Hassan Ezadi Chamkhorami vs Mrs Radha on 10 March 2011, wherein the plaintiff being a foreign citizen is the biological and legal guardian of the baby born from the surrogate mother (defendant). However, to ensure that his legal rights are secure, he needs to obtain a decree/declaration from the defendant as she was married during the birth of the baby. The court held that the plaintiff is entitled to such a declaration and that his rights are well protected within the meaning of surrogacy agreements.
One interesting thing these cases pointed out was that the courts in such cases agreed and considered the requirement of a codified system of surrogacy laws in India. Currently, they resort to the 228th report of the Law Commission Of India and National Guidelines for Accreditation/Supervision of ART Clinics, 2005 by ISMR/NAMS, to decide the cases on surrogacy. The guidelines laid down by the ISMR clearly states that a surrogate mother will never be considered as the legal guardian of a baby.
Certain questions about and on surrogacy were also answered in a Seminar called “Bane or Boon” held at India International Centre. The seminar stated that the surrogacy agreements are valid as there are no laws prohibiting surrogacy. Moreover, the parents of the surrogate child can claim their custody under the Guardians and Wards Act 1890. It also states that in case of dispute in the surrogacy agreements, the parties can approach a Civil court under Section 9 of the Civil Procedure Code. (Lakshmanan, 2009)
In conclusion, it can be said that the Seminar on surrogacy and the Law commission’s report are few persuasive tools that the Indian courts use while considering a case pertaining to the surrogacy agreement. However, these aren’t sufficient as surrogacy is becoming a huge hub in India. Our nation owing to the huge population, unemployment and poverty is continuously being exploited by the rich from various parts of the world as well as their Indian counterparts to save their wealth from the expensive formal medical procedures to produce a baby. Hence, this unregulated commercialisation of surrogacy has proved to be a really big bone of contention for surrogate women! They are frequently mistreated & promised to receive many lucrative benefits but in reality, receive none. Moreover, gender biases play a major role in deciding whether the surrogate mother will receive any monetary benefits and sometimes that whether the baby born will actually be claimed and taken with the parents. Most times, if the baby born is a girl then the parents tend to abandon the baby and leave it at the mercy of the surrogate mother. These things negatively impact the mental, financial and emotional health of the surrogate mother and add to her woes. Hence, stricter, well-defined and elaborate laws are required in the matter of surrogacy to regulate and restrict the “Surrogate Industry” of India and to also save the interest of the surrogate mother!
- Vimal, N. (2019, May). Surrogacy Laws in India. Retrieved from IPleaders: blog.ipleaders.in
- Mohanty, A. C. (2021, April). All you need to know about Surrogacy Law in India . Retrieved from Lawrato: lawrato.com
- Lakshmanan, D. J. (2009). NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY. LAW COMMISSION OF INDIA (REPORT NO. 228) .
- KUSUM, S. (n.d.). LEGAL GLITCHES FACING SURROGACY AGREEMENT IN INDIA. Manupatra Docs.